Exhibit 4.23
FORM OF
PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated as of October __, 1996 (this "Agree
ment"), among SunAmerica Inc., a Maryland corporation (the "Company"), The
First National Bank of Chicago, a national banking association, not
individually but solely as collateral agent (in such capacity, together with
its successors in such capacity, the "Collateral Agent") and a depository bank
for the collateral amount, and The Bank of New York, not individually but
solely as purchase contract agent and as attorney-in-fact of the Holders (as
hereinafter defined) from time to time of the Securities (as hereinafter
defined) (in such capacity, together with its succes sors in such
capacity, the "Purchase Contract Agent") under the Purchase Contract
Agreement (as hereinafter defined).
RECITALS
The Company and the Purchase Contract Agent are parties to the
Purchase Contract Agreement, dated as of the date hereof (as modified and
supplemented and in effect from time to time, the "Purchase Contract
Agreement"), pursuant to which there will be issued _____% Premium Equity
Redemption Cumulative Security Units (the "Securities").
Each Security consists of (a) one Purchase Contract (as
hereinafter defined) and (b) ______% United States Treasury Notes due _______,
1999 ("Treasury Notes") having a principal amount equal to $_____ (the
"Stated Amount") and maturing on ________ __, 1999 (the "Final Settlement
Date"), subject to the pledge of such Treasury Notes created hereby.
The Company has caused the Underwriters, on its behalf, to
purchase the Treasury Notes, to be settled on _______ __, 1996, with the
proceeds of the offering of the Securities and other funds to be provided by
the Company. The Company will convey such Treasury Notes to the Holders as
a part of the Securities.
Pursuant to the terms of the Purchase Contract Agreement and
the Purchase Contracts, the Holders (as defined in the Purchase Contract
Agreement) from time to time of the Securities have authorized the Purchase
Contract Agent, as attorney-in-fact of such Holders, among other things to
execute and deliver this Agreement on behalf of such Holders and to grant
the pledge provided hereby of the Treasury Notes constituting part of such
Securities as provided herein and subject to the terms hereof.
Accordingly, the Company, the Collateral Agent and the Purchase
Contract Agent, on its own behalf and as attorney-in-fact of the Holders from
time to time of the Securities, agree as follows:
Section 1. Definitions. For all purposes of this Agreement,
except as otherwise expressly provided or unless the context otherwise
requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular; and
(b) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Agreement as a whole and not to any
particular Article, Section or other subdivision.
"Acceleration" has the meaning specified in the Purchase
Contract Agreement.
"Act" has the meaning specified in the Purchase Contract
Agreement.
"Agreement" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more agreements
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Applicable Treasury Regulations" means Subpart O- Book-Entry
Procedure of Title 31 of the Code of Federal Regulations (31 CFR (S) 306.115
et. seq.) and any other regulations of the United States Treasury Department
from time to time applicable to the transfer or pledge of book-entry U.S.
Treasury Securities, including, without limitation, the regulations set forth
in 31 CFR Part 357 which becomes effective January 1, 1997.
"Bankruptcy Code" means title 11 of the United States Code, or
any other law of the United States that from time to time provides a uniform
system of bankruptcy laws.
"Bankruptcy Event" has the meaning specified in the Purchase
Contract Agreement.
"Board Resolution" has the meaning specified in the Purchase
Contract Agreement.
"Business Day" means any day that is not a Saturday, a Sunday
or a day on which the New York Stock Exchange or banking institutions or trust
companies in The City of New York are authorized or obligated by law or
executive order to be closed.
"Collateral Agent" has the meaning specified in the first
paragraph of this instrument.
"Collateral Account" means the account maintained at The First
National Bank of Chicago in the name "The First National Bank of Chicago as
Collateral Agent of SunAmerica Inc. as pledgee of The Bank of New York as
Purchase Contract Agent".
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor shall have become such, and
thereafter "Company" shall mean such successor.
"Final Settlement Date" has the meaning specified in the
Recitals.
"Holder" when used with respect to a Security, or a Purchase
Contract constituting a part thereof, has the meaning specified in the
Purchase Contract Agreement.
"Holder's Early Settlement" has the meaning specified in the
Purchase Contract Agreement.
"Holder's Early Settlement Amount" has the meaning specified in
the Purchase Contract Agreement.
"Opinion of Counsel" means an opinion in writing signed by
legal counsel, who may be an employee of or counsel to the Company and who
shall be reasonably acceptable to the Collateral Agent or the Purchase
Contract Agent, as the case may be.
"Outstanding Securities" has the meaning specified in the
Purchase Contract Agreement.
"Outstanding Security Certificates" has the meaning specified
in the Purchase Contract Agreement.
"Payment Date" has the meaning specified in the Purchase
Contract Agreement.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Pledge" has the meaning specified in Section 2 hereof.
"Pledged Treasury Notes" has the meaning specified in Section 2
hereof.
"Purchase Contract" has the meaning specified in the Purchase
Contract Agreement.
"Purchase Contract Agent" has the meaning specified in the
first paragraph of this instrument.
"Sale of Assets" has the meaning specified in the Purchase
Contract Agreement.
"Security" has the meaning specified in the Recitals.
"Security Certificate" has the meaning specified in the
Purchase Contract Agreement.
"Stated Amount" has the meaning specified in the Recitals.
"Treasury Notes" has the meaning specified in the Recitals.
Section 2. The Pledge. The Holders from time to time of the
Securities acting through the Purchase Contract Agent, as their
attorney-in-fact, hereby pledge and grant to the Collateral Agent for the
benefit of the Company, as collateral security for the performance when due by
such Holders of their respective obligations under the Purchase Contracts
comprising a portion of such Securities, a security interest in all of the
right, title and interest of such Holders in the Treasury Notes constituting a
part of such Securities. Concurrently with the execution and delivery of the
Securities, the initial Holders and the Purchase Contract Agent shall (i)
cause the Treasury Notes to be transferred to the Collateral Agent by
Federal Reserve Bank-Wire to the account of the Collateral Agent and (ii)
the Collateral Agent shall credit the Treasury Notes to the Collateral
Account; in each case pursuant to Applicable Treasury Regulations and to
the Uniform Commercial Code to the extent such laws are applicable. The
pledge provided in this Section 2 is herein referred to as the "Pledge" and
the Treasury Notes subject to the Pledge, excluding any Treasury Notes
released from the Pledge as provided in Section 4 hereof, are hereinafter
referred to as the "Pledged Treasury Notes." Subject to the Pledge, and to
the provisions of Article 4 of the Purchase Contract Agreement, the Holders
from time to time of the Securities shall have full beneficial ownership of
the Treasury Notes constituting a part of such Securities.
Notwithstanding any other provision of this Agreement, The
First National Bank of Chicago as depositary bank hereby agrees that (a) it
will comply with "entitlement orders" (within the meaning of Section
8-102(a)(8) of the 1994 version of the Official Text of the UCC relating to
the Collateral Account issued by the Collateral Agent without further consent
by the Purchase Contract Agent or any Holder and (b) it hereby waives any
right of set-off or recoupment that it may have with respect to the Collateral
Account. The First National Bank of Chicago hereby represents that it has not
entered into, and hereby agrees that until the termination of the Purchase
Contract Agreement it will not enter into, any agreement with any other person
relating to the Collateral Account pursuant to which it has agreed to comply
with entitlement orders made by such person.
Section 3. Distribution of Principal and Interest. All
payments of principal of, or interest on, any Treasury Notes constituting part
of the Securities received by the Collateral Agent shall be paid by the
Collateral Agent by wire transfer in same day funds no later than 1:00 p.m.,
New York City time, on the Business Day such interest payment is received by
the Collateral Agent (provided that in the event such interest payment is
received by the Collateral Agent on a day that is not a Business Day or after
1:00 p.m., New York City time, on a Business Day, then such payment shall be
made no later than 10:00 a.m., New York City time, on the next succeeding
Business Day) (i) in the case of (A) interest payments and (B) any principal
payments with respect to any Treasury Notes that have been released from the
Pledge pursuant to Section 4 hereof, to the Purchase Contract Agent to the
account designated by it for such purpose and (ii) in the case of principal
payments on any Pledged Treasury Notes, the Purchase Contract Agent on behalf
of the Holders hereby directs the Collateral Agent to make such payments to
the Company, in full satisfaction of the respective obligations of the Holders
of the Securities of which such Pledged Treasury Notes are a part under the
Purchase Contracts forming a part of such Securities. All such payments
received by the Purchase Contract Agent as provided herein shall be applied by
the Purchase Contract Agent pursuant to the provisions of the Purchase
Contract Agreement, including the provisions of Article 4 of the Purchase
Contract Agreement with regard to the semi-annual interest payment due on
the Treasury Notes on _________ __, 1996. If, notwithstanding the
foregoing, the Purchase Contract Agent shall receive any payments of
principal on account of any Pledged Treasury Notes, the Purchase Contract
Agent shall hold the same as trustee of an express trust for the benefit of
the Company (and promptly deliver over to the Company) for application to
the obligations of the Holders of the Securities of which such Treasury
Notes are a part under the Purchase Contracts relating to the Securities of
which such Treasury Notes are a part, and such Holders shall acquire no
right, title or interest in any such payments of principal so received.
Section 4. Release of Pledged Treasury Notes. (a) Upon written
notice to the Collateral Agent by the Company or the Purchase Contract Agent
that there has occurred a Bankruptcy Event or Sale of Assets, resulting in the
termination of the Purchase Contracts in accordance with Section 5.09 of the
Purchase Contract Agreement, the Collateral Agent shall release all Pledged
Treasury Notes from the Pledge and shall transfer all such Treasury Notes,
free and clear of any lien, pledge or security interest created hereby, to the
Purchase Contract Agent.
If such Bankruptcy Event or Sale of Assets shall result from
the Company's becoming a debtor under the Bankruptcy Code, and if the
Collateral Agent shall for any reason fail immediately to effectuate the
release and transfer of all Pledged Treasury Notes as provided by this Section
4(a), the Purchase Contract Agent shall, subject to Section 6(l), (i) use its
best efforts to obtain an opinion of a nationally recognized law firm
reasonably acceptable to the Collateral Agent (the reasonable expense of
which shall be reimbursed by the Company) to the effect that, as a result
of the Company's being the debtor in such a bankruptcy case, the Collateral
Agent will not be prohibited from releasing or transferring the Treasury
Notes as provided in this Section 4(a), and shall deliver such opinion to
the Collateral Agent within ten days after the occurrence of such
Bankruptcy Event or Sale of Assets, and if (y) the Purchase Contract Agent
shall be unable to obtain such opinion within ten days after the occurrence
of such Bankruptcy Event or Sale of Assets or (z) the Collateral Agent
shall continue, after delivery of such opinion, to refuse to effectuate the
release and transfer of all Pledged Treasury Notes as provided in this
Section 4(a), then the Purchase Contract Agent shall within fifteen days
after the occurrence of such Bankruptcy Event or Sale of Assets commence an
action or proceeding in the court with jurisdiction of the Company's case
under the Bankruptcy Code seeking an order requiring the Collateral Agent
to effectuate the release and transfer of all Pledged Treasury Notes as
provided by this Section 4(a) or (ii) commence an action or proceeding like
that described in the immediately preceding subsection hereof within ten
days after the occurrence of such Bankruptcy Event or Sale of Assets.
(b) Upon written notice to the Collateral Agent by the Purchase
Contract Agent that one or more Holders of Securities have elected to effect
Holder's Early Settlement of their respective obligations under the Purchase
Contracts forming a part of such Securities in accordance with the terms of
the Purchase Contracts and the Purchase Contract Agreement (setting forth the
number of such Purchase Contracts as to which such Holders have elected to
effect Holder's Early Settlement), and that the Purchase Contract Agent has
received from such Holders, and paid to the Company, the related Holder's
Early Settlement Amounts pursuant to the terms of the Purchase Contracts and
the Purchase Contract Agreement and that all conditions to such Holder's
Early Settlement have been satisfied, then the Collateral Agent shall
release from the Pledge and shall transfer all such Treasury Notes, free
and clear of any lien, pledge or Security interest created hereby, to the
Purchase Contract Agent with a principal amount equal to the product of (i)
the Stated Amount times (ii) the number of such Purchase Contracts as to
which such Holders have elected to effect Holder's Early Settlement.
(c) Upon written notice to the Collateral Agent by the Company
of an Acceleration in accordance with the terms of the Purchase Contracts and
the Purchase Contract Agreement (setting forth the number of Securities to be
accelerated), and that all conditions to such Acceleration have been
satisfied, then the Collateral Agent shall release from the Pledge and shall
transfer all such Treasury Notes, free and clear of any lien, pledge or
Security interest created hereby, to the Purchase Contract Agent with a
principal amount equal to the product of (i) the Stated Amount times (ii) the
number of Securities to be accelerated.
(d) Transfers of Treasury Notes pursuant to Section 4(a), (b) or
(c) shall be by Federal Reserve Bank-Wire or in another appropriate manner,
(i) if the Collateral Agent shall have received such notification at or prior
to 11:00 a.m., New York City time, on a Business Day, then no later than 2:00
p.m., New York City time, on such Business Day and (ii) if the Collateral
Agent shall have received such notification on a day that is not a Business
Day or after 11:00 a.m., New York City time, on a Business Day, then no later
than 10:00 a.m., New York City time, on the next succeeding Business Day.
Section 5. Rights and Remedies. (a) The Collateral Agent shall
have all of the rights and remedies with respect to the Pledged Treasury Notes
of a secured party under the Uniform Commercial Code as in effect in the State
of New York (the "Code") (whether or not the Code is in effect in the
jurisdiction where the rights and remedies are asserted) and such additional
rights and remedies to which a secured party is entitled under the laws in
effect in any jurisdiction where any rights and remedies hereunder may be
asserted.
(b) Without limiting any rights or powers otherwise granted by
this Agreement to the Collateral Agent, in the event the Collateral Agent
is unable to make payments to the Company on account of principal payments
of any Pledged Treasury Notes as provided in Section 3 hereof in
satisfaction of the obligations of the Holder of the Securities of which
such Pledged Treasury Notes are a part under the Purchase Contracts forming
a part of such Securities, the Collateral Agent shall have and may
exercise, with reference to such Pledged Treasury Notes and such
obligations of such Holder, any and all of the rights and remedies
available to a secured party under the Code after default by a debtor, and
as otherwise granted herein or under any other law.
(c) Without limiting any rights or powers otherwise granted by
this Agreement to the Collateral Agent, the Collateral Agent is hereby
irrevocably authorized to receive and collect all payments of principal of
or interest on the Pledged Treasury Notes.
(d) The Purchase Contract Agent agrees that, from time to time,
upon the written request of the Collateral Agent, the Purchase Contract Agent
shall execute and deliver such further documents and do such other acts and
things as the Collateral Agent may reasonably request in order to maintain the
Pledge, and the perfection and priority thereof, and to confirm the rights of
the Collateral Agent hereunder.
Section 6. The Collateral Agent and the Purchase Contract
Agent. It is hereby agreed as follows:
(a) Appointment, Powers and Immunities. The Collateral Agent
shall act as agent for the Company hereunder with such powers as are
specifically vested in the Collateral Agent by the terms of this Agreement,
together with such other powers as are reasonably incidental thereto. The
Collateral Agent: (i) shall have no duties or responsibilities except
those expressly set forth in this Agreement and no implied covenants or
obligations shall be inferred from this Agreement against the Collateral
Agent, nor shall the Collateral Agent be bound by the provisions of any
agreement by any party hereto beyond the specific terms hereof; (ii) shall
not be responsible for any recitals contained in this Agreement, or in any
certificate or other document referred to or provided for in, or received
by it under, this Agreement, the Securities or the Purchase Contract
Agreement, or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement (other than as against the
Collateral Agent), the Securities or the Purchase Contract Agreement or any
other document referred to or provided for herein or therein or for any
failure by the Company or any other Person (except the Collateral Agent) to
perform any of its obligations hereunder or thereunder; (iii) shall not be
required to initiate or conduct any litigation or collection proceedings
hereunder (except pursuant to directions furnished under Section 6(b)
hereof); (iv) shall not be responsible for any action taken or omitted to
be taken by it hereunder or under any other document or instrument referred
to or provided for herein or in connection herewith or therewith, except
for its own gross negligence; and (v) shall not be required to advise any
party as to selling or retaining, or taking or refraining from taking any
action with respect to, any securities or other property deposited
hereunder. Subject to the foregoing, during the term of this Agreement,
the Collateral Agent shall take all reasonable action in connection with
the safe keeping and preservation of the Pledged Treasury Notes hereunder.
No provision of this Agreement shall require the Collateral
Agent to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder. In no event
shall the Collateral Agent be liable for any amount in excess of the value
of the Pledged Treasury Notes.
(b) Instructions of the Company. The Company shall have the
right, by one or more instruments in writing executed and delivered to the
Collateral Agent, to direct the time, method and place of conducting any
proceeding for any right or remedy available to the Collateral Agent, or of
exercising any power conferred on the Collateral Agent, or to direct the
taking or refraining from taking of any action authorized by this
Agreement; provided, however, that (i) such direction shall not conflict
with the provisions of any law or of this Agreement and (ii) the Collateral
Agent shall be adequately indemnified as provided herein. Nothing in this
Section 6(b) shall impair the right of the Collateral Agent in its
discretion to take any action or omit to take any action which it deems
proper and which is not inconsistent with such direction.
(c) Reliance by Collateral Agent. The Collateral Agent shall be
entitled to rely upon any certification, order, judgment, opinion, notice or
other communication (including, without limitation, any thereof by telephone,
telecopy, telex, telegram or cable) believed by it to be genuine and correct
and to have been signed or sent by or on behalf of the proper Person or
Persons (without being required to determine the correctness of any fact
stated therein), and upon advice and statements of legal counsel and other
experts selected by the Collateral Agent. As to any matters not expressly
provided for by this Agreement, the Collateral Agent shall in all cases be
fully protected in acting, or in refraining from acting, hereunder in
accordance with instructions given by the Company in accordance with this
Agreement.
(d) Rights in Other Capacities. The Collateral Agent and its
affiliates may (without having to account therefor to the Company) accept
deposits from, lend money to, make investments in and generally engage in any
kind of banking, trust or other business with the Purchase Contract Agent and
any Holder of Securities (and any of their subsidiaries or affiliates) as if
it were not acting as the Collateral Agent, and the Collateral Agent and its
affiliates may accept fees and other consideration from the Purchase Contract
Agent and any Holder of Securities without having to account for the same to
the Company, provided that the Collateral Agent covenants and agrees with the
Company that the Collateral Agent shall not accept, receive or permit there to
be created in its favor any security interest, lien or other encumbrance of
any kind in or upon the Pledged Treasury Notes.
(e) Non-Reliance on Collateral Agent. The Collateral Agent shall
not be required to keep itself informed as to the performance or observance by
the Purchase Contract Agent or any Holder of Securities of this Agreement, the
Purchase Contract Agreement, the Securities or any other document referred to
or provided for herein or therein or to inspect the properties or books of the
Purchase Contract Agent or any Holder of Securities. The Collateral Agent
shall not have any duty or responsibility to provide the Company with any
credit or other information concerning the affairs, financial condition or
business of the Purchase Contract Agent or any Holder of Securities (or any of
their affiliates) that may come into the possession of the Collateral Agent or
any of its affiliates.
(f) Compensation and Indemnity. The Company agrees: (i) to pay
the Collateral Agent from time to time reasonable compensation for all
services ren dered by it hereunder and (ii) to indemnify the Collateral
Agent for, and to hold it harmless against, any loss, liability or expense
incurred without gross negligence or bad faith on its part, arising out of
or in connection with the acceptance or administration of its powers and
duties under this Agreement, including the costs and expenses (including
reasonable fees and expenses of counsel) of defending itself against any
claim or liability in connection with the exercise or performance of such
powers and duties.
(g) Failure to Act. In the event of any ambiguity in the
provisions of this Agreement or any dispute between or conflicting claims by
or among the parties hereto and/or any other Person with respect to any funds
or property deposited hereunder, the Collateral Agent shall be entitled, at
its sole option, to refuse to comply with any and all claims, demands or
instructions with respect to such property or funds so long as such dispute or
conflict shall continue, and the Collateral Agent shall not be or become
liable in any way to any of the parties hereto for its failure or refusal to
comply with such conflicting claims, demands or instructions. The Collateral
Agent shall be entitled to refuse to act until either (i) such conflicting or
adverse claims or demands shall have been finally determined by a court of
competent jurisdiction or settled by agreement between the conflicting
parties as evidenced in a writing, satisfactory to the Collateral Agent or
(ii) the Collateral Agent shall have received security or an indemnity
satisfactory to the Collateral Agent sufficient to save the Collateral Agent
harmless from and against any and all loss, liability or expense which the
Collateral Agent may incur by reason of its acting. The Collateral Agent may
in addition elect to commence an interpleader action or seek other judicial
relief or orders as the Collateral Agent may deem necessary. Notwithstanding
anything contained herein to the contrary, the Collateral Agent shall not be
required to take any action that is in its opinion contrary to law or to the
terms of this Agreement, or which would in its opinion subject it or any of
its officers, employees or directors to liability.
(h) Resignation of Collateral Agent. Subject to the
appointment and acceptance of a successor Collateral Agent as provided
below, (a) the Collateral Agent may resign at any time by giving notice
thereof to the Company and the Purchase Contract Agent, (b) the Collateral
Agent may be removed at any time by the Company and (c) if the Collateral
Agent fails to perform any of its material obligations hereunder in any
material respect for a period of not less than 20 days after receiving
written notice of such failure by the Purchase Contract Agent and such
failure shall be continuing, the Collateral Agent may be removed by the
Purchase Contract Agent. The Purchase Contract Agent shall promptly notify
the Company of any removal of the Collateral Agent pursuant to clause (c)
of the immediately preceding sentence. Upon any such resignation or
removal, the Company shall have the right to appoint a successor Collateral
Agent. If no successor Collateral Agent shall have been so appointed and
shall have accepted such appointment within 30 days after the retiring
Collateral Agent's giving of notice of resignation or such removal, then
the retiring Collateral Agent may at the expense of the Company petition
any court of competent jurisdiction for the appointment of a successor
Collateral Agent. The Collateral Agent shall be a bank which has an office
in New York, New York and a combined capital and surplus of at least
$50,000,000. Upon the acceptance of any appointment as Collateral Agent
hereunder by a successor Collateral Agent, such successor Collateral Agent
shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Collateral Agent, and the retiring
Collateral Agent shall take all appropriate action to transfer any money
and property held by it hereunder (including the Pledged Treasury Notes) to
such successor Collateral Agent. The retiring Collateral Agent shall, upon
such succession, be discharged from its duties and obligations as
Collateral Agent hereunder. After any retiring Collateral Agent's
resignation hereunder as Collateral Agent, the provisions of this Section 6
shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as the Collateral Agent.
Promptly following the removal or resignation of the Collateral
Agent the Company shall give written notice thereof to Xxxxx'x Investors
Services, Inc.
(i) Right to Appoint Agent or Advisor. The Collateral Agent
shall have the right to appoint agents or advisors in connection with any
of its duties hereunder, and the Collateral Agent shall not be liable for
any action taken or omitted by such agents or advisors selected in good
faith.
(j) Survival. The provisions of this Section 6 shall survive
termination of this Agreement and the resignation or removal of the Collateral
Agent.
(k) Anything in this Agreement to the contrary notwithstanding,
in no event shall the Collateral Agent or its officers, employees or agents be
liable under this Agreement to any third party for indirect, special,
punitive, or consequential loss or damage of any kind whatsoever, including
lost profits, whether or not the likelihood of such loss or damage was known
to the Collateral Agent, or any of them, incurred without any act or deed that
is found to be attributable to gross negligence on the part of the Collateral
Agent.
(l) The Purchase Contract Agent. The duties and responsibilities
of the Purchase Contract Agent under this Agreement shall in each case be
governed by Article VII of the Purchase Contract Agreement.
Section 7. Amendment..
(a) Amendment Without Consent of Holders. Without the consent of
any Holders, the Company, the Collateral Agent and the Purchase Contract
Agent, at any time and from time to time, may amend this Agreement, in form
satisfactory to the Company, the Collateral Agent and the Purchase Contract
Agent, for any of the following purposes:
(i) to evidence the succession of another Person to the
Company, and the assumption by any such successor of the
covenants of the Company; or
(ii) to add to the covenants of the Company for the benefit
of the Holders, or to surrender any right or power herein
conferred upon the Company; or
(iii) to evidence and provide for the acceptance of
appointment hereunder by a successor Collateral Agent or
Purchase Contract Agent; or
(iv) to cure any ambiguity, to correct or supplement any
provisions herein which may be inconsistent with any other
such provisions herein, or to make any other provisions with
respect to such matters or questions arising under this
Agreement, provided such action shall not adversely affect
the interests of the Holders.
(b) Amendment with Consent of Holders. With the consent of the
Holders of not less than 66 2/3% of the Outstanding Securities, by Act of said
Holders delivered to the Company, the Purchase Contract Agent and the
Collateral Agent, the Company when authorized by a Board Resolution, the
Purchase Contract Agent and the Collateral Agent may amend this Agreement for
the purpose of modifying in any manner the provisions of this Agreement or the
rights of the Holders in respect of the Securities; provided, however, that no
such supplemental agreement shall, without the consent of the Holder of each
Outstanding Security affected thereby,
(i) change the amount or type of Treasury Notes
underlying a Security, impair the right of the Holder of any
Security to receive interest payments on the underlying
Treasury Notes or otherwise adversely affect the Holder's
rights in or to such Treasury Notes; or
(ii) change any Payment Date;
(iii) impair the right to institute suit for the enforcement
of any Purchase contract.
(iv) otherwise effect any action that would require the
consent of the Holder of each Outstanding Security affected
thereby pursuant to the Purchase Contract Agreement if such
action were effected by an agreement supplemental thereto; or
(v) reduce the percentage of Outstanding Securities the
consent of whose Holders is required for any such amendment.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed amendment, but it shall
be sufficient if such Act shall approve the substance thereof.
(c) Execution of Amendments. In executing any amendment
permitted by this Section, the Collateral Agent and the Purchase Contract
Agent shall be entitled to receive and (subject to Section 6(a) hereof, with
respect to the Collateral Agent, and Section 7.0 of the Purchase Contract
Agreement, with respect to the Purchase Contract Agent) shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution
of such amendment is authorized or permitted by this Agreement and that all
conditions precedent to such execution and delivery have been satisfied.
(d) Effect of Amendments. Upon the execution of any amendment
under this Section, this Agreement shall be modified in accordance therewith,
and such amendment shall form a part of this Agreement for all purposes; and
every Holder of Security Certificates theretofore or thereafter authenticated,
executed on behalf of the Holders and delivered under the Purchase Contract
Agreement shall be bound thereby.
(e) Reference to Amendments. Security Certificates
authenticated, executed on behalf of the Holders and delivered after the
execution of any amendment pursuant to this Section may, and shall if
required by the Collateral Agent or the Purchase Contract Agent, bear a
notation in form approved by the Purchase Contract Agent and the Collateral
Agent as to any matter provided for in such amendment. If the Company
shall so determine, new Security Certificates so modified as to conform, in
the opinion of the Collateral Agent, the Purchase Contract Agent and the
Company, to any such amendment may be prepared and executed by the Company
and authenticated, executed on behalf of the Holders and delivered by the
Purchase Contract Agent in accordance with the Purchase Contract Agreement
in exchange for Outstanding Security Certificates.
Section 8. Miscellaneous.
(a) No Waiver. No failure on the part of the Collateral Agent or
any of its agents to exercise, and no course of dealing with respect to, and
no delay in exercising, any right, power or remedy hereunder shall operate as
a waiver thereof; nor shall any single or partial exercise by the Collateral
Agent or any of its agents of any right, power or remedy hereunder preclude
any other or further exercise thereof or the exercise of any other right,
power or remedy. The remedies herein are cumulative and are not exclusive of
any remedies provided by law.
(b) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The Company,
the Collateral Agent and the Holders from time to time of the Securities,
acting through the Purchase Contract Agent as their attorney-in-fact, hereby
submit to the nonexclusive jurisdiction of the United States District Court
for the Southern District of New York and of any New York state court sitting
in New York City for the purposes of all legal proceedings arising out of or
relating to this Agreement or the transactions contemplated hereby. The
Company, the Collateral Agent and the Holders from time to time of the
Securities, acting through the Purchase Contract Agent as their
attorney-in-fact, irrevocably waive, to the fullest extent permitted by
applicable law, any objection which they may now or hereafter have to the
laying of the venue of any such proceeding brought in such a court and any
claim that any such proceeding brought in such a court has been brought in an
inconvenient forum.
(c) Notices. All notices, requests, consents and other
communications provided for herein (including, without limitation, any
modifications of, or waivers or consents under, this Agreement) shall be given
or made in writing (including, without limitation, by telecopy) delivered to
the intended recipient at the "Address for Notices" specified below its name
on the signature pages hereof or, as to any party, at such other address as
shall be designated by such party in a notice to the other parties. Except as
otherwise provided in this Agreement, all such communications shall be deemed
to have been duly given when transmitted by telecopier or personally delivered
or, in the case of a mailed notice, upon receipt, in each case given or
addressed as aforesaid.
(d) Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the respective successors and assigns of the
Company, the Collateral Agent and the Purchase Contract Agent, and the Holders
from time to time of the Securities, by their acceptance of the same, shall be
deemed to have agreed to be bound by the provisions hereof and to have
ratified the agreements of, and the grant of the Pledge hereunder by, the
Purchase Contract Agent.
(e) Counterparts. This Agreement may be executed in any number
of counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties hereto may execute this Agreement by
signing any such counterpart.
(f) Severability. If any provision hereof is invalid and
unenforceable in any jurisdiction, then, to the fullest extent permitted by
law, (i) the other provisions hereof shall remain in full force and effect in
such jurisdiction and shall be liberally construed in order to carry out the
intentions of the parties hereto as nearly as may be possible and (ii) the
invalidity or unenforceability of any provision hereof in any jurisdiction
shall not affect the validity or enforceability of such provision in any other
jurisdiction.
(g) Expenses, etc. The Company agrees to reimburse the
Collateral Agent for: (a) all reasonable out-of-pocket costs and expenses
of the Collateral Agent (including, without limitation, the reasonable fees
and expenses of counsel to the Collateral Agent), in connection with (i)
the negotiation, preparation, execution and delivery or performance of this
Agreement and (ii) any modification, supplement or waiver of any of the
terms of this Agreement; (b) all reasonable costs and expenses of the
Collateral Agent (including, without limitation, reasonable fees and
expenses of counsel) in connection with (i) any enforcement or proceedings
resulting or incurred in connection with causing any Holder of Securities
to satisfy its obligations under the Purchase Contracts forming a part of
the Securities and (ii) the enforcement of this Section 8(g); and (c) all
transfer, stamp, documentary or other similar taxes, assessments or charges
levied by any governmental or revenue authority in respect of this
Agreement or any other document referred to herein and all costs, expenses,
taxes, assessments and other charges incurred in connection with any
filing, registration, recording or perfection of any security interest
contemplated hereby.
(h) Security Interest Absolute. All rights of the Collateral
Agent and security interests hereunder, and all obligations of the Holders
from time to time of the Securities hereunder, shall be absolute and
unconditional irrespective of:
(i) any lack of validity or enforceability of any
provision of the Purchase Contracts or the Securities or any
other agreement or instrument relating thereto;
(ii) any change in the time, manner or place of payment of,
or any other term of, or any increase in the amount of, all
or any of the obligations of Holders of Securities under the
related Purchase Contracts, or any other amendment or waiver
of any term of, or any consent to any departure from any
requirement of, the Purchase Contract Agreement or any
Purchase Contract or any other agreement or instrument
relating thereto; or
(iii) any other circumstance which might otherwise
constitute a defense available to, or discharge of, a
borrower, a guarantor or a pledgor.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
SunAmerica Inc.
By: ______________________________________
Name:
Title:
Address for Notices:
SunAmerica Inc.
0 XxxXxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000-0000
Attention: Treasurer
Telecopy: (000) 000-0000
__________________________________________
as Purchase Contract Agent and as
attorney-in-fact of the Holders from time
to time of the Securities
By: ______________________________________
Name:
Title:
Address for Notices:
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust
Administration Department
Telecopy: (000) 000-0000
__________________________________________
as Collateral Agent and Depository Bank
for the Collateral Amount
By: _____________________________________
Name:
Title:
Address for Notices:
The First National Bank of Chicago
One First Xxxxxxxx Xxxxx
Xxxx Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust
Administration Department
Telecopy: (000) 000-0000
